The identification of an accused as the perpetrator of the crime is paramount in obtaining a conviction[1] In South Africa a numerical approach is followed to establish identity beyond reasonable doubt. Courts have accepted different points of similarities[2] until 1953 in the case of R v Nzama and Another.[3] In this case the fingerprint expert testified about eleven points of similarity, but indicated that seven points of similarity are sufficient proof to establish identity.

The court accepted seven points of similarity without any reference. It became therefore a common occurrence in South African court rooms for expert witnesses to testify that the general acceptance is an existence of seven points of similarity between the latent fingerprint and that of the accused to be sufficient for the purpose of positive identification.[4 [5] It became apparent that over the past decades, fingerprint experts in South Africa still cannot provide a reliable answer as to why it can be proclaimed that seven points of similarity are sufficient proof. Judges attached such a high value to fingerprint examiners’ testimony[6] that fingerprint experts’ "collective experience"[7] became regarded as a science which went unchallenged.

A habitual conjectural statement by fingerprint examiners is that seven points of similarity are sufficient proof of identity beyond  reasonable doubt. Subsequently, a gateway for tentative fingerprint statements were secured but the manner in which fingerprint experts came to the seven point standard is murky. Judges have stated that one cannot be rigid and unambiguous[8] with regard to the seven-point standard even though they are still hesitant to adopt another standard. South African courts have thus abide by seven points of similarity even though law systems around the world continue to adjust their standard as new information surface regarding fingerprint evidence.[9] When certain court cases are considered the impression arise that South African fingerprint examiners do move away from the seven-point standard in certain cases. This statement is based on the actuality that although the South African experts state that seven points of similarity are sufficient proof, it is interesting to note that the expert, in numerous court cases, testified about fingerprint enlargements which illustrate more than seven points of similarities. In R v Smit (“Smith”)[10] the expert referred to eleven points of similarity where in the case of R v Nksatlala ("Nksatlala")[11] the expert found eight, but stated that seven points of similarity are sufficient to establish identity. In S v Segai (“Segai”)[12] the expert identified ten points of similarity where in S v Van Wyk (“Van Wyk”)[13] the fingerprint enlargement indicated eleven points of similarity. In S v Gumede (“Gumede”)[14] the fingerprint expert indicated nine ridge details which corresponded with the fingerprint of the accused. In S v Khanyile ("Khanyile")[15] the fingerprint expert found eight points of similarity. In S v Nyathe (“Nyathe”)[16] the expert testified that he marked ten points of similarity between the latent fingerprint and the fingerprint of the accused person. In S v Zibi (“Zibi”)[17] the fingerprint expert also testified that he found eleven points of similarity, although seven points were sufficient proof. In S v Congola (“Congola”)[18] the fingerprint expert testified that he found similarities in excess of seven points thus confirming that the identity of the perpetrator must be that of the accused before the court. In Smit,[19] Van Wyk,[20] Gumede,[21] Nyathe,[22] Zibi [23] and Congola[24] the court accepted seven points of similarity as sufficient evidence to proof the identity of the accused and subsequently convicted the accused. Only in Nksatlala[25] and Segai[26]  did the court not convict the accused. In Khanyile[27] the court considered the seven-point standard as the minimum amount of points of similarity in the sense that the court would rather accept the expert’s opinion if the expert has found a larger number of similarities. Although the facts of every case differ and fingerprint evidence must be considered in the light of all the known facts before the court, fingerprint evidence can be much more convincing if a larger amount of ridge details are established. If fingerprint experts state with confidence that seven points of similarity are sufficient to establish proof, why do they testify, and even point out, that they found more than seven similarities in the latent and inked fingerprints? The reality is, however, that South African courts still stick with a seven-point standard.   [1] J M Visser & H Oosthuizen “Dilemmas of science and the criminal law: a South African perspective” (2009) 30 Obiter 563 563. [2] Rex v Abrahams 1925 P-H Sept H 38 the court accepted nine points of identity and in Rex v Brydon 1928 P-H. June H. 71 the court accepted twelve points of similarity. In Rex v Morela 1947 (3) SA 147 (A) Tindall JA considered the detective-sergeants evidence regarding the fingerprint impressions of the accused. Tindall JA indicated that the expert testified that eight points of similarity are considered sufficient to establish identity beyond a reasonable doubt. However, the court failed to deduce from the fingerprint expert information as to the science, and in essence the underlying assumption, behind the claim that a certain numerical amount of ridge details are adequate to proof identity. The defence however did not object to the acceptance by the court of this standard, ergo the court refrained from furthering on this obstacle. [3] 1953 (2) SA 628 (W). [4] 629. [5] R v Nksatlala 1960 (3) SA 543 (A); S v Nala 1965 (4) SA 360 (A) 361; S v Segai 1981 (4) SA 906 (O); S v Gumede 1982 (4) SA 561; S v Nyathe 1988 (2) SA 211; S v Klaase 1998 (1) SACR 317 (C); F G Gardiner & C W H Lansdown South African Criminal Law and Procedure Volume 1 General Principles and Procedure (1957) 626. [6] In S v Kimimbi 1963 (3) SA 250 (C) 251F - H Watermeyer J stated that: “[On] the one hand, a mere layman who comes to court and alleges a fact which he has learned only by reading a medical or mathematical book cannot be heard. But on the other hand, to reject a professional physician or mathematician because the fact or some of the facts to which he testifies are known to him only upon the authority of others, would be to ignore the accepted methods of professional work and to insist on impossible standards." This statement by Watermeyer J is a lucid exemplification of the unsubstantiated knowledge provided by fingerprint examiners. The judge, in essence, confirmed the unattested seven point standard of the expert by promoting fingerprint experts to scientist and elevating the collective fingerprint community’s experience to “fellow scientist reliance.” In S v Malindi 1983 (4) SA 99 (T) 106 one of the experts stated that: “[H]e is aware of the fact that the senior officials of the Criminal Bureau held a conference and decided in their wisdom to fix the minimum at seven points of similarity.” The expert did not elaborate on what the nature of the conference was or how exactly did the conference came to the conclusion that a certain amount of similarities can establish a match. The court nevertheless accepted this statement by the expert. With no provided satisfactory answer and the 1947 Morela judgment where the Judge already enunciated the desire to ascertain from the expert information regarding the reason behind the statement that seven points of similarity are sufficient for identification, one anticipated that the South African courts would have moved away from the seven point standard or even required the statistical foundation for fingerprint identification. [7] S A Cole & A Roberts “Certainty, Individualization and the Subjective Nature of Expert Fingerprint Evidence (2012) 11 Crim LR 824 825. [8] In Malindi 1983 (4) SA 99 (T) the court stated that one cannot be dogmatic or categorical about the seven point standard, but even with additional information provided by the defence expert, the court did not deviate from the seven point standard. [9] In I Evett & R Williams “A review of the sixteen points fingerprint standard in England and Wales” (1996) Journal of Forensic Identification 46 49-73 it was concluded that there is no scientific, logical or statistical basis for the retention of a numerical standard. The sixteen-point standard was subsequently changed to a non-numerical standard in England and Wales.   [10] 1952 (3) SA 447 (A). [11] 1960 (3) SA 543 (A). [12] 1981 (4) SA 906 (O). [13] 1982 (2) SA 148 (NC). [14] 1982 (4) SA 561. [15] 1984 (3) SA 756 (N). [16] 1988 (2) SA 211. [17] 2012 JDR 0376 (ECM). [18] 2002 (2) SACR 383 (T). [19] 1952 (3) SA 447 (A). [20] 1982 (2) SA 148 (NC). [21] 1982 (4) SA 561. [22] 1988 (2) SA 211. [23] 2012 JDR 0376 (ECM). [24] 2002 (2) SACR 383 (T). [25] 1960 (3) SA 543 (A). [26] 1981 (4) SA 906 (O). [27] 1984 (3) SA 756 (N).